CYBERSPACE AND IPR VIOLATIONS

The cyberspace serves as an unfettered medium of information and unsolicited

medium of communication, hence the inherent difficulty of controlling content
upon the virtual world has become a major cause of concern for Intellectual
Property right(IPR) owners. Though IPR violations over the cyber space take
place in numberable ways, the ambit of this Article is confined to violations of
copyright and Trademark in the cyberspace with special emphasis on the
Indian scenario. During the course of the Article reasons of rampant IPR
violations, laws regulating the cyber space, possible safeguards and case Laws
on the subject will be discussed and analysed.
Creative work in the field of arts, music, literature, cinematography etc. find
protection under the Indian Copyrights Act, 1957 and anything falling within
the definition of Section 13 of the Act is entitled to copyright protection under
the Act. The object of the copyright Law is to promote, protect and reward
creativity and it is to achieve these objections, the Indian Copyrights Act,1957
provide for stringent punishment for violation as defined under the Act. The
violation of Copyright in India is covered under Section 67 of the Act which
provides for a minimum punishment of 6 months extendable upto 3 years and
fine upto Rs. 50,000. Recently the Copyright Act has been amended by the
Amendment Act of 2012. Vide the said amendment, Section 14 relating to
exclusive right in the copyright work is been amended which now provides that
rights in artistic works, cinematography films, and sound recording now
includes storing of it in any medium by electronic or other means. The
purpose of the amendment is to cover the copies that get created at multiple
locations, including the transmitting network and users computer. Hence, all
such storages have been rendered illegal and in violation of the Act by virtue
of the 2012 amendment. The Act has also created liability for internet service
providers and further provides protection of the digital media by providing
penalties for circumvention. The objective of the said amendment is to make
the Indian Law compliant with International internet treaties such as WIPO
Copyright Treaty, WIPO Performance and Phonograms Treaty.
On the other hand, the Cyber space in India is regulated by the Indian
Technology Act, 2000( IT Act, 2000) which defines various offences in the cyber
space as well prescribes their punishment. What is noteworthy, is that the IT
Act, seriously falls short to protect IPR violations on the internet and no
provisions exists in the Act dealing exclusively with IPR violations. This has led
to an unregulated and unprecedented growth of copyright violations on the
internet mostly common in the form of piracy. In the physical world, republication, distribution, transmission of authors copyrighted work attracts

stern consequences, however, the same is rampant on the internet without any
adverse consequences owing to the following reasons:
a. Quality Control: Unlike the physical world, where a copied material for
ex. a book copied from a photocopy machine suffers quality limitation vis
a vis the original one, no such limitation exists in the cyberspace and
even the 100th copy of a song, photo, video on the internet is exactly the
replica of the original one. Hence, quality is never compromised in online
piracy.
b. No Cost of Reproduction: Piracy in the physical world may entail
serious expenses in the form of making replicas of books, CDs etc.
however, the cyberspace is free from such fetters and replicas can be
created, uploaded, published and distributed at the click of a button.
c. Hard to Track Offender: In the virtual world, with the use of
appropriate technology, act of piracy can be committed without facing
the risk of identity revelation or tracking. This defeats any possible action
which might be taken against the offender.
d. Jurisdiction Issues: Since, Internet has no origin and no end, many a
times violaters escape Legal action owing to lack of territorial jurisdiction
of the Court to try the Offender.
The most celebrated case worldwide about copyright violation is the Napster
Case1, where the Plaintiff was sued by the Defendant for P2P sharing,
Napster here was a company providing a software whereby the user can
share media files stored in his computer with other user of Napster. The
Companies whose copyrights had been violated demanded $ 1,00,000 from
Napster for each violation of copyright. In a settlement arrived between the
Parties, Napster agreed to pay, one third of all future profits to the settling
firms. Ultimately Napster was forced shut in 2000.
Similarly, Trademark violation in the cyber space is another grave area of
concern. Section 28 of the TradeMark Act 1999, grants exclusive right to the
owner of the Trademark to use the Trademark and also to protect his
trademark by way of suit for injunction, damages, rendition of accounts etc.
The Indian Courts have recognized the importance of protection of
trademarks in the virtual world. In Yahoo.com V. Akash Arora2, it was held
that domain names serve the same function as a trademark, is not merely
an address and are entitled to equal protection as a trademark. Violation of
the trademark in the form of copying of the brand name on the internet is
popularly known as cyber squatting whereby the violator intentionally
registers a domain name which includes trademarked words, company
names, brand names etc. In Google V. Racha Ravinder3, the Defendant got
registered googlenetbiz.com. Google Inc being the owner of well known
1
2
3

11 A&M Records; Inc. v. Napster; Inc. 2000 WL 573136, I (N.D. cal 2000)
1999 PTC (19) 201
WIPO D2009-1454

trademark Google filed a complaint. It was held that the Defendant with
ulterior motives to reap upon the established goodwill of the Complainant
registered the said domain name and hence it was ordered that the domain
name be transferred to the Complainant, Google Inc.
The biggest challenge the owners of Intellectual Property face is the
enforcement of their rights in case of violation in the cyber space. In the
real world, it is easy to determine the Court having necessary territorial
jurisdiction to adjudicate the matter, in case of violation over the internet,
since the user maybe situated in some other country( bound by different
laws), IPR owner in some other and Internet provider in some third country,
the question arises as to which Court will have the territorial jurisdiction to
entertain the matter. Though, the question of jurisdiction is still debatable,
the Indian Law has attempted to put rest the controversy vide virtue of
Section 62 of the Copyright Act and Section 134(2) of the Trademark Act.
Though Section 20 of the Civil Procedure Code entails territorial jurisdiction
only upon a Court where the Defendant resides or personally works for gain
or the Court within whose jurisdiction, cause of action has taken place, this
bar has been done away with Section 62 of the Copyright Act and Section
134(2) of the Trademark Act which provide that the Plaintiff can sue at the
place where he resides or works for gain irrespective as to whether the
defendant resides or not and irrespective of the cause of action. However,
the Delhi High Court in Microsoft Corporation V. Pradeep Khanna4
interpreting Section 62 and 134(2) has held that the intention of section
62 and 134(2) is to enable the Plaintiff to initiate litigation at a forum
convenient to it, it is not open to the Plaintiff to chose a forum which is not
convenient to either of the Parties.CPC, however constitutes a grand norm,
the ethos and essence of which percolates through all other statues.
Thus, Indian Legislature has made a commendable effort to clarify the
jurisdiction issue in case of violation of IPR in the cyber space.
Since, more often than not, the victims of IPR violations specially
trademarks are corporate entities, it is utmost important that necessary
safeguards are taken by the companies before going online. One such
mechanism is digital watermark which allows copyright owners to track
distribution, access and payment of its material. In addition to this, various
methods such a providing free trial version of software, free upgrades, sale
of complimentary technology etc are also vouched by corporations as
attempts to retain customers and also protect their valuable intellectual
property over the internet at the same time.

CS(OS) 2027/2009

Conclusion:
Protection of intellectual property in the cyberspace is indispensible for
growth of e-commerce. Corporations, authors, musicians etc. must be given
adequate protection to reap benefits of their hardwork. The Copyright
Amendment Act, 2012 is a commendable step in this direction. However,
conventional Laws are being applied for protection of Intellectual property
over the cyber space, protection of intellectual property in the cyber space is
challenging and hence combination of various methods is the need of the
hour. Similar Amendments in other areas of IPR are also immediately
required for effective protection of IPR in the cyber space.